Supreme Court Roundup; Iran-Contra Appeal Refused by Court

By LINDA GREENHOUSE,

Published: December 8, 1992

WASHINGTON, Dec. 7—
Turning down an appeal from the independent prosecutor in the Iran-contra case, the Supreme Court today let stand the appeals court decision that threw out the criminal conviction of John M. Poindexter, the highest-ranking Reagan Administration official to be found guilty in the affair.

Arguments by Lawrence E. Walsh, the independent counsel, that the appeals court's ruling last year was a legal watershed that would make it all but impossible to prosecute people once they had testified before Congress under a grant of immunity, did not appear to interest the Justices. The Court acted without comment or recorded dissent.

Mr. Walsh said he hoped that someday the Court would see fit to review the questions posed by the appeal. This was Mr. Walsh's second rebuff by the Court, which refused last year to hear his appeal of a ruling that forced him to dismiss criminal charges against another prominent Iran-contra figure, Oliver L. North.

In a statement put out by his office here, Mr. Walsh said the case against Mr. Poindexter was now at an end. "We shall take appropriate action to dismiss the case," he said.

Mr. Poindexter, a retired Navy admiral who served as President Ronald Reagan's national security adviser, was convicted in April 1990 on five counts of lying to Congress and obstructing the Congressional investigation of the Reagan Administration's covert arms sales to Iran and the diversion of some proceeds to rebels fighting the Marxist Government in Nicaragua.

A panel of the United States Court for the District of Columbia Circuit overturned Mr. Poindexter's conviction in November 1991 by a vote of 2 to 1. It ruled that the testimony to the Congressional investigating committees had been unfairly used against Mr. Poindexter at his trial and that the Federal law against obstructing a Congressional inquiry was unconstitutionally vague.

In his Supreme Court appeal, U.S. v. Poindexter, No. 92-591, Mr. Walsh argued that this second part of the ruling cast doubt on the constitutionality of 17 similarly worded Federal criminal laws. The law at issue, known as Section 1505, makes it a crime to "corruptly" influence, impede or obstruct a Congressional or other Government inquiry. The appeals court said the word corruptly was vague in failing to give proper notice that it could be used to prosecute an individual.

Mr. Walsh argued that Section 1505 dated, with little change, to a law first enacted in 1831. To declare a widely used law vague after more than 160 years "may fairly be characterized as astonishing," he said.

Because the Court, in turning down Mr. Walsh's appeal in the North case, had already indicated that it had little interest in the immunity issue, the question of the validity of Section 1505 appeared to give the prosecutor his best chance of getting Supreme Court review. But the failure of the Justice Department to file a brief on Mr. Walsh's behalf may have undercut the force of his argument by signaling to the Court that the appeals court's interpretation had not really created a serious law-enforcement problem.

The Federal judge who presided over Mr. Poindexter's trial, Harold H. Greene, took a variety of steps to insure that the defendant's Congressional testimony would not be used against him. But the appeals court found that these measures were insufficient.

For example, the appeals court said that Judge Greene should not have permitted Mr. North to testify because at a pretrial hearing, Mr. North told the judge that he would not be able to keep separate his own independent knowledge of the events from what he had heard in Mr. Poindexter's Congressional testimony. In ruling that Mr. North should testify, Judge Greene had rejected his pretrial statements as "evasive, disingenuous and argumentative."

In the appeal, Mr. Walsh said the appeals court had erected obstacles "of unprecedented strictness to the prosecution of persons who have given public immunized testimony."

Mr. Poindexter's lawyers, Keith A. Jones and Richard W. Beckler, replied in their brief that Mr. Walsh himself had warned Congress in advance that granting immunity to Mr. Poindexter and other officials implicated in the affair would create an "insurmountable" barrier to prosecuting them. Homosexuals in the Military

In another action today, the Court refused to hear a Bush Administration appeal from a lower court ruling that rejected the military's rationale for its exclusion of homosexuals.

As a result, the military will now have to choose a new defense to a lawsuit brought by a woman who was denied a promotion to major and then dismissed from the Army Reserve after the Army learned that she is a lesbian. The woman, Carolyn D. Pruitt, had revealed her homosexuality in a newspaper interview.

Ms. Pruitt's constitutional challenge to the military's policy was dismissed by a Federal District Judge in California, but was reinstated last year by the United States Court of Appeals for the Ninth Circuit, in San Francisco.

The appeals court said Ms. Pruitt was entitled to go forward with her contention that the policy violated the constitutional guarantee of equal protection of the laws. In sending the case back to the District Court for further hearings, the appeals court said the Defense Department would not be permitted to defend the policy on the ground the presence of homosexuals in the military would create tension and hostility. The the "prejudice of others against homosexuals" was not a valid justification for the military's policy, the appeals court said.

In its Supreme Court appeal, Cheney v. Pruitt, No. 92-389, the Administration said the appeals court should have deferred to the military rather than "second-guess the judgment of military officials as to what categories of persons should be barred from military service in order to promote an effective and disciplined fighting force." Rap Recording

Without comment, the Court refused to review a Federal appeals court ruling that found the rap recording "As Nasty as They Wanna Be" by 2 Live Crew not to be obscene.

After Sheriff Nicholas G. Navarro of Broward County, Fla., succeeded in having the recording removed from stores in the Fort Lauderdale area, the rap group brought a civil rights suit of its own against him. The group won a ruling that the sheriff's earlier actions had amounted to an unconstitutional prior restraint, in violation of the First Amendment, as well as a declaration that the recording was not obscene under the standards the Supreme Court has set for determining obscenity.